Citation Nr: 21061683 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-44 749 DATE: October 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease and degenerative joint disease of the lumbar spine (lower back disability) is denied. FINDING OF FACT The evidence does not show that the forward flexion in the Veteran's thoracolumbar spine was functionally limited to 60 degrees or less. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative disc disease and degenerative joint disease of the lumbar spine (lower back disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from October 2003 to July 2008. This issue was previously before the Board in November 2019. The Board remanded the issue of entitlement to an initial disability rating in excess of 10 percent for a low back disability given that the examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Per the November 2019 Board remand, the Veteran was scheduled for a new VA examination in February 2020. The Veteran failed to appear for that examination and has not presented good cause for his absence. In the August 2020 Supplemental Statement of the Case (SSOC), the Veteran was advised of this missed examination and that it is his responsibility to report for any examination and to cooperate in the development of his claims. To date, no response has been received from the Veteran indicating the reason for this missed examination. Given that he did not provide good cause, the Board notes that 38 C.F.R. § 3.655 expressly directs the Board to decide the claim based on the available evidence already of record if the Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection and directs the Board to summarily deny an increased-rating claim when this happens. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of the claim). Increased Rating The Veteran seeks a higher initial rating for his back disability. His lower back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. A back disability is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Here, the Veteran did not have a diagnosis of IVDS and has not been shown to have been prescribed bedrest (a foundational requirement for an IVDS rating) to treat his back disability. As such, his back disability will be rated under the General Rating Formula for the Diseases and Injuries of the Spine, which provides the following: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the General Rating Formula for Diseases and Injuries of the Spine remain the same under the new regulations. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for a lower back disability. In April 2017, the Veteran was afforded a VA examination where he was diagnosed with degenerative arthritis of the spine and degenerative disc disease (DDD) or degenerative joint disease (DJD) of the lumbar spine at L4-L5. The Veteran did not report experiencing flare-ups. Upon examination, the Veteran showed forward flexion to 70 degrees with pain and extension to 20 degrees with pain. The Veteran was able to perform repetitive use testing without any reduction of range of motion. The examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The examiner found no muscle atrophy, guarding, muscle spasms, radiculopathy, ankylosis, or IVDS. VA treatment records do not indicate more severe findings ROM findings than at the April 2017 examination. An April 2019 VA treatment note indicates that the Veteran contacted his primary care provider regarding excruciating pain in his back after he "threw his back out" the prior evening. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion of 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding neurological impairment, the Board notes that the Veteran reported in his June 2017 Notice of Disagreement (NOD), that when he wakes up his arms and legs are numb and tingling. This is the only report of neurological symptoms related to his spine disability. The Veteran did not report neurological symptoms, nor was he diagnosed with radiculopathy at the April 2017 VA examination two months prior. As a result, there is insufficient evidence of record to find that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his lower back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.